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SC91141In re the Adoption of C.M.B.R., a Minor. S.M. and M.M.Jasper CountyChallenge to the termination of parental rights and the adoption of a child by a third partyListen to the oral argument: The mother was represented during arguments by Christopher M. Huck of Peterson Young Putra PS in Seattle, and the adoptive parents were represented by Richard L. Schnake of Neale & Newman LLP in Springfield.

In May 2007, Immigration and Customs Enforcement raided a poultry plant where a Guatemalan woman (the mother) was employed. The mother, along with more than 100 other undocumented immigrants, was taken into custody. The mother was prosecuted for aggravated identity theft. In October 2007, the mother pleaded guilty and was sentenced to two years in prison followed by deportation. At the time of her arrest in May, the mother had an infant child who was staying with her brother. A few days later, the brother asked the mother’s sister to care for the child. For help with babysitting, the sister contacted a local church’s clergy, whose family served as babysitters. In September 2007, the clergy family contacted another couple about adopting the child. After 10 days of visitation and one overnight visit, the clergy family gave the child to the other couple, who then filed a petition to terminate the mother’s parental rights and to adopt the child. The adoptive parents served their summons and petition for transfer of custody, termination of parental rights and adoption on the mother in October 2007. No attorney was notified on behalf of the mother, who is not proficient in English. Two days later, the circuit court transferred custody of the child to the adoptive parents, who later hired an attorney to represent the mother. In October 2008, the attorney represented the mother at a hearing about both termination of the mother’s parental rights and adoption of the child. The circuit court found the mother “abandoned” the child, terminated her parental rights and granted the adoptive parents’ petition to adopt the child. The mother appeals.

The mother argues the court erred in terminating her parental rights and granting adoption of the child to the adoptive parents. She contends the court failed to adhere to the statutorily mandated placement requirements governing private adoption and that the local clergy family that acted as intermediaries are not “a clergyman of the parents” as contemplated by the governing adoption statute. The mother asserts the court failed to comply with the statutorily mandated requirements for investigating her fitness as a mother or the fitness of adoptive parents. The mother argues the court erred because it transferred custody of the child prior to the entry of a court order and because it failed to give her proper notice or appoint counsel to represent her before the transfer hearing. The mother contends the court erred in finding she abandoned the child because: the court relied on hearsay testimony; the evidence negated any finding of abandonment during the statutorily mandated 60-day period before the petition was filed; and the mother left her child in her family’s care. The mother asserts that even if the court’s findings are not contrary to law, its findings are “improperly formulaic.” She argues the court’s findings regarding the child’s best interests are improper because the court erroneously injected the issues of her immigration status and the adoptive parents’ wealth and because the court did not find she was unable to provide for her child. The mother contends there were several due process violations. She asserts that she did not receive her required notice of the custody hearing or receive copies of the petition or any other pleadings in her native language and that the petition referenced obsolete statutory provisions. She argues that she was not appointed counsel for the initial custody hearing and that the adoptive parents improperly were involved in the later selection of her counsel. The mother contends the guardian ad litem and juvenile officer failed to act diligently in the child’s best interests because they did not undertake an investigation independent of the adoptive parents. The mother asserts the court’s mixing of the termination and adoption proceedings into the same hearing improperly interjected the issue of the adoptive parents’ fitness into the mother’s termination proceedings, thereby denying her due process. The mother argues she did not receive a fair and neutral hearing. She contends the court improperly permitted evidence of her immigration and criminal status to be injected while ignoring the adoptive father’s criminal history and other relevant matters. The mother contends she received ineffective assistance of counsel. She asserts that she did not have any counsel for 10 months and that, for the remaining two months before the termination hearing, her counsel failed to provide effective representation. She argues her counsel did not: investigate the facts diligently; present evidence concerning her efforts to maintain contact with and care for the child; cross-examine key witnesses; introduce evidence of the mother’s phone calls; reveal witnesses’ motives in taking the child; challenge assertions that she was served properly; demonstrate that the child criminally was placed up for private adoption; question the lack of required investigations; and make some attempt to allow her to present testimony.

The adoptive parents respond that the circuit court did not err in terminating the mother’s parental rights or granting adoption of the child to the adoptive parents. The adoptive parents argue that although the local clergy family that acted as intermediaries may not “literally comply” with the governing statute’s language “a clergyman of the parents,” they do “substantially comply” with that language, and substantial compliance is all that is necessary. The adoptive parents further argue the mother failed to preserve the issue of trial court error below and failed to demonstrate prejudice because the child had nowhere to go but with the adoptive parents. They contend the court did not transfer custody of the child based on the local clergy family’s qualifications as “clergyman” under the governing statute but rather based on the child’s best interests. The adoptive parents assert the mother has failed to cite legal authority as to why the court erred in transferring custody of the child prior to entering a court order. They also assert that, because the child lived with the potential adoptive parents prior to the transfer or custody, the relevant statutes did not deprive the court of the power to make such a transfer. The adoptive parents argue the facts of this case made “strict statutory compliance” impossible and that to require more than “substantial compliance” would have a “chilling effect” on adoptions in the state. They further argue that there was no requirement for an investigation into the mother’s fitness because she abandoned the child and that the mother failed to preserve this point for appeal. The adoptive parents contend the mother also failed to preserve the issue of abandonment. They assert that the court found two statutory grounds for terminating parental rights, and that, read in the light most favorable to the judgment, the record supports the court’s finding of abandonment. The adoptive parents argue that the mother improperly relies on evidence outside the record to challenge the court’s finding of abandonment and that there was evidence of abandonment during the statutorily mandated 60-day period before the petition was filed. They contend that the mother misstates the record and that the mother did not make provisions to care of the child. The adoptive parents assert the mother failed to preserve her arguments regarding the child’s best interests. Further, they argue that the court’s findings as to the issue were appropriate and that the mother’s status as an illegal alien was relevant. The adoptive parents contend that the mother did not preserve her due process challenges and that no alleged violations justify reversal. They assert that there is evidence the summons was served personally on the mother; that the obsolete provisions in the petition do not amount to error; and that the summons and petition did not present a “substantial” language barrier. The adoptive parents respond that mother did not preserve her claims of ineffective assistance of counsel and that, even if she had, there was no error because the mother never asked for any attorney. The adoptive parents argue their selection of and payment for the mother’s later counsel was not inappropriate. They contend the mother did not preserve the issue of whether the guardian ad litem and juvenile officer failed to act diligently. The adoptive parents assert that the juvenile officer was not a party to the proceedings and that the guardian ad litem did not need to conduct an independent investigation. They respond that the court did not err in mixing the termination and adoption proceedings in the same hearing and that the mother’s immigration and criminal status were relevant for the termination proceeding. The adoptive parents argue that the mother’s counsel was effective and that there is no contrary evidence on the record.

Parties making arguments – as friends of the Court – in support of the mother

The American Civil Liberties Union of Eastern Missouri, the American Civil Liberties Union of Kansas and Western Missouri, and Washington University Law School Civil Justice Clinic argue Missouri courts should recognize a statutory and constitutional right to effective assistance of counsel in termination of parental rights proceedings.

The consulate general of Guatemala argues the circuit court erred in denying the mother’s motion for relief from the adoption judgment because the motion was filed within one year after judgment was entered and because, if the consulate had been notified of the adoption, it would have filed the motion for relief from judgment. The consulate contends that the court should have considered the timeline of events before the motion for relief from judgment was filed and that the mother’s appellate counsel filed the motion shortly after beginning representation.

The Immigrant Child Advocacy Project argues the termination of the mother’s parental rights violates international law because the Convention of the Rights of the Child requires the controlling government (here, Missouri) to act in the child’s best interests. It contends that this principle is consistent with both federal and Missouri law and that here, the court acted in direct conflict with the child’s best interests.

Legal Momentum argues the court violated the mother’s parental rights. It contends that no statutory grounds exist in this case for terminating parental rights and that the court’s analysis of the child’s best interests was flawed. It argues the court violated the mother’s due process rights. It asserts that due process extends to immigrant family relations, that there are additional due process protections for those with limited English proficiency and that the court failed to ensure these due process rights for the mother.

The Mexican American Legal Defense and Educational Fund argues that undocumented immigrants are entitled to equal rights under the law and that there is no compelling government interest in treating the mother differently because of her immigration status. It contends depriving undocumented immigrants of their familial rights based on their immigration status is unconstitutional.

The Women’s Refugee Commission argues the court violated the mother’s due process rights because her immigration status was not a sufficient reason to terminate her parental rights. It contends that because the mother because remained in custody while actions leadings to the adoption took place without her knowledge or consent, the adoptive parents’ “exploitation” of the mother’s immigration status was “egregious and shocks the conscience.” The commission further asserts that the mother’s due process rights were violated by having ineffective counsel, who was paid for by the adoptive parents.

Listen to the oral argument: Fravell was represented during arguments by Erin R. Griebel of Rosenblum, Schwartz, Rogers & Glass PC in St. Louis, and the state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.

Scott Fravell pleaded guilty to first-degree statutory rape for sexual intercourse with a person younger than 14 years old and, in June 2008, was sentenced to 10 years in prison. The execution of his sentence was suspended, and Fravell was given five years of supervised probation. In October 2008, the prosecuting attorney advised the circuit court that section 559.106, RSMo, requires Fravell be placed on lifetime supervision. Following hearings on the issue the circuit court in January 2010 placed Fravell on lifetime supervision. Fravell seeks this Court’s writ prohibiting the circuit court from placing him on lifetime supervision.

Fravell argues the circuit court erred in applying the lifetime probation requirements of section 559.106 to his case. He contends that the statute is aimed at placing repeat sexual offenders on lifetime probation and that, because Fravell is a first-time offender, the circuit court’s reading of the statute renders absurd results in his case. He asserts the court’s reading incorrectly reasons that only those status offenders who are given probation can be placed on lifetime supervision and that those who are incarcerated cannot be placed on lifetime supervision. He further asserts that, even if the statute applies, any ambiguity must be construed in his favor. Fravell argues section 559.106 violates the constitutional prohibition against changing the original purpose of legislation through amendments. Fravell contends that because the statute codifies an amendment regulating sex offenders, it is unrelated to the original purpose or subject matter of the originating legislation, which dealt with intoxication-related traffic offenses.

The state responds that the circuit court properly applied 559.106 to Fravell. It argues that the statute is unambiguous and that its plain language requires that persons placed on probation following convictions or guilty pleas to statutory rape or first-degree statutory sodomy are subject to lifetime supervision regardless of whether they are prior sex offenders. The state contends that because 559.106 was repealed and reenacted in 2006 – as part of a bill whose purpose was to enact statutes relating to sexual offenders, with penalty provisions – the version of the statute applied to Fravell did not violate the constitutional prohibition against changing the original purpose of legislation.